What must your lawyer do to get your case to trial? The process that moves a case from charge to trial is reflected in the following list of tasks and services usually required, at a minimum, in the Ontario criminal courts:
- Attend remand/administrative court appearances;
- Obtain and review police/crown disclosure materials;
- Request, obtain and review further/other disclosure materials arising from initial disclosure review;
- Analysis and advice to and receive instructions from client with respect to known disclosure, witnesses, evidence, etc., and all aspects of the defence as may affect plea, pre-trial and trial motions/applications, trial and/or sentencing issues;
- Conduct pre-trial discussions with Crown prosecutor as per court protocols/practice directions for date setting, and related preparation;
- Seek and secure such bail variations on consent as reasonably warranted;
- Take final instructions with respect to disclosure/evidence, pre-trial and trial motions/applications, plea to be tendered;
- Legal research with respect to specific issues, preparation of submissions;
- Conduct witness interviews, prepare examinations of witnesses;
- Conduct Judicial Pre-trial conferences [“JPT”] as per court protocols/practice direction for date setting, and related preparation;
- Draft, serve and file pre-trial and trial motions/applications;
- Secure hearing date for pre-trial motion/application(s), if any, in coordination with Crown and Court schedules;
- Secure hearing date(s) for trial in coordination with Crown and Court schedules;
- Prepare client and other defence witnesses, if any, for testimony;
- Attendance at Court for conduct of trial;
- Attendance at Court for sentencing proceedings, if any.
In more serious (“indictable”) matters, there will be additional steps of attending court for Preliminary Inquiry, and the preparation prior to and as arising from that hearing.
Lawyers are obliged to ensure that clients understand what is involved in each of these steps – unless clients very clearly instruct counsel to ‘just take case of this please’, which also a fair instruction from a client who has chosen to retain experienced counsel for that reason. Mr. Clark’s default method is to make sure clients understand each of these steps and what is being done on their behalf.
‘Efficiency’ in the Justice System
The justice system often seems to look for ‘efficiencies’ at the expense of the accused persons and their counsel. While it is routine for top judges to make speeches (for example in 2011 and in 2007) and judicial decisions reflecting the need for greater access to justice in Canada. Most recently, newly appointed Supreme Court judge Mr. Justice Richard Wagner stated “If you don’t make sure there is access to justice, it can create serious problems for democracy. It is dangerous … We have to support our judicial system. Sometimes, I feel that people take that for granted.”
But at the same time, judges and bureaucrats charged with administering the justice system are under constant budgetary pressure, just like any line item on the government’s budget. The result of this pressure is often experienced as ‘downloading’ onto accused persons and the lawyers who try to accommodate them within their limited financial means.
For example, in a genuine attempt to reduce systemic backlogs, mandatory meetings between the Crown and Defence lawyer must be held before an accused is allowed to set a trial date (‘crown pre-trial’); sometimes a further mandatory meeting with a judge is required (‘judicial pre-trial’ or ‘JPT’). These can be productive and necessary in some cases. But in others there is no use to the meeting and/or the crown attends completely unprepared so that the even tis nothing more than a more than a forced opportunity for the system to entice people to plead guilty.
More to the point, these mandatory meetings can significantly increase the amount of time a lawyer must spend working on a case. The system can thus depletes a significant percentage of the accused’s limited resources before there is any real opportunity to advance the defence at all.
Also in another genuine attempt to improve the system, it has become virtually mandatory for the accused to receive Crown disclosure to persons in court ‘on the record’. This is often very convenient. But sometimes the police or the Crown inexplicably delay disclosure and the accused is required to appear at administrative remands over and over again for no productive reason and with no immediate remedy available. Time off work might start to imperil employment while the allegations, and possibly strict bail conditions, continue to hang over the accused. There is a possible remedy for such problems under section 11(b) of the Charter which guarantees the right to be tried within a reasonable time, but that can only be sought at trial, well after the administrative phase.
These are just two illustrations how the justice system can grind an accused person down before offering any real opportunity to fight back. There are much worse examples, such as bail conditions that unnecessarily tear families apart and induce pleas of guilty from people who are in fact not guilty at all.
Mr. Clark as experienced counsel can anticipate and navigate such situations. Counsel’s expertise extends beyond the courtroom and includes the battle against the bureaucratic inertia and officials who fail to meet their obligations at any stage.
Whether counsel’s retainer involves a ‘block fee’ or straight an hourly rate, it is part of counsel’s duty to ensure that the resources available to the defence are properly devoted to truly improving the client’s position.
For accused persons who are unable to miss work repeatedly, a ‘Designation of Counsel’ under section 650 of the Criminal Code can be filed in court allowing counsel to appear in the absence of the accused. Other clients might opt to attend court without counsel for those initial appearances where nothing is decided or done aside from receiving the police disclosure. The approach required will depend on the client’s particular situation, preferences and instructions.
The criminal law office of Graham T. Clark offers not only the experience and expertise necessary to navigate each step in the process, but also the benefit of relationships and rapports with a diverse range of offices, colleagues and other professionals throughout Ontario, built over years of strictly criminal practice, to make sure things are done fairly and efficiently.
Call for a free consultation: 416.531.7321.